BOOK REVIEWS
THE ADVOCATE’S DEVIL
C. P. Harvey, Q.C. with a foreword by Lord Monekton
TORONTO: THE CmtSWELL Co. LTD., 1957
Just before his recent appointment to the High Court in England, Mr.
Justice Eiwes said that a thing is not right because it is done in Court. Now
comes the author of this provocative and stimulating little book to give com-
mon lawyers another salutary jolt out of that complacency which is probably
their most besetting sin. (By the time this is in print the 48th Conference
of the International Law Association will have been held in New York, at
which we of the common law tradition cannot fail to bc=ome aware of the
fact that there are other systems of law which have their virtues too.) Mr.
Harvey is a highly successful member of the English Bar who has two virtues
that are infrequently found among his kind: he can write good lucid English,
and he can stand back, look at his profession and make an unprejudiced
appraisal of its merits or lack of them. Not necessarily a just appraisal; Mr.
Harvey is surely too cynical and disillusioned by half. But he brings home
one truth: the law and its administration can never be any 1–t-ut,
than those
who practise it. “Here below”, he says “the judge, jury and advocate are all
born of Adam, the flesh is weak, and every now and then the devil has his
way.” He gives instances of some shocking English judges. Stories are told
of Lord Darling, a man who, incidentally, had a microscopic practice before
being elevated to the Bench. Very topical for the English
is his
scathing but just condemnation of Lord Chief Justice Hewart, one of the
worst holders of his office. It comes when the retirement of one of the great-
est Chief Justices, Lord Goddard, has occasioned a discussion amongst think-
ing people –
that may end the tradition (which
Goddard C.J. first broke) of treating the office as a plum for a politician-
lawyer.
lawyers and laymen alike –
lawyer
Canadians used to the fused professions of barrister and solicitor may well
see the advantages of a divided profession after reading this book. They should
note the importance of the English rule that “a barrister offered a brief in
the class of work in which he normally practises, marked with a “proper”
fee, is bound, unless otherwise engaged, to accept the brief whoever may be
the client.” In the U.S.A.
it appears, a lawyer need not make a fool of
himself by taking up what seems to him to be a hopeless case. But the poor
client may find himself going the rounds of careerist lawyers’ offices in the
vain hope of finding someone to defend him. And in the long run the English
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BOOK REVIEWS
Bar has a higher repute than its American counterpart –
thanks partly to
the rule quoted. This in turn is reflected in the greater esteem and confidence
enjoyed by the English judiciary. A weak Bar means poor judges –
and
therefore poor justice. In this connection Canadians may be interested in Mr.
Harvey’s defence of the apparent sycophancy with which English counsel are
wont to treat the judges. But the embryo advocate of any nationality under
any system of law should read this book if only for Mr. Harvey’s warning
of the danger of asking the one question too many. I say “embryo” because
the older advocate is usually too far gone to profit from the warning anyway.
REGINALD HALL*
THE OFFENDERS
Giles Playfair and Derrick Sington
SimoN m SCaUSTER,
(1957) Pp. vnu, 305. $3.95
The Offenders is divided into two parts. Part I, labelled “The Cases” out-
line the stories of six men and one woman convicted of crimes, and Part II,
entitled “The Summing-up,” sets down the authors’ conclusions regarding
the problem of crime and punishment The first offender is Neville Heath, an
ex-R.A.F. officer who murdered two young women. As with each case Heath’s
life, crime, conviction and punishment are described. Lawyers, however, will
be particularly interested in the detailed report of the proceedings at his trial.
Despite Heath’s original reluctance, his counsel argued that he came within
the terms of the McNaghten rules. The traditional impatience of British courts
with psychiatry, and all that it implies, is interestingly revealed. The prse-
cution, instead of calling psychiatrists, was content to rebut the psychiatric
evidence given for the defence with the testimony of two ordinary physicians.
The psychiatrist who testified on behalf of the accused certainly did little
to enhance the reputation of his branch of medecine. He submitted that the
accused suffered from “moral insanity” and “moral defectiveness”. As the
authors Point out these are terms originally devised in the Nineteenth century
and since abandoned by most psychiatrists in favour of psychopathy. In fact
in the United States an effort is now being made to discard pdychopathy in
favour of different and more precise terminology. The jury rejected the in.-
sanity plea and found the accused guilty. Heath was accordingly banged in
October of 1946.
*Of the English Bar, Birmingham, “England.
McGILL LAW JOURNAL
[Vol. 5
The contrast between the procedure and approach of the court in the Heath
case with that of the Baltimore Criminal Court described in the Brettinger
case is very interesting.
Rudi Brettinger, from age three onward demonstrated abnormally agres-
sive and destructive tendencies. All forms of punishments failed to alter his
behaviour. At the age of eleven he was found delinquent and sent to the
Maryland Training School. In 1950, when he was twenty, Rudi was charged
with armed robbery. A committee of interested persons decided to make this
into a test case. His counsel maintained that the accused was: “1. Not guilty
by reason of insanity at the time of the commission of the crime; 2. Not
guilty by reason of insanity now.” Three psychiatrists gave evidence on behalf
of the accused, and one psychiatrist appeared for the prosecution. They all
agreed that Rudi was a psychopath. The issue was whether the accused came
within the terms of the McNaghten rules. The case ultimately revolved about
the meaning of the word “knowing”. The defence argued that knowing “how-
ever the law might once have interpreted it, could no longer be regarded as
solely a function of the intellect; they held that it was just as much an emo-
tional function”. The jury apparently agreed with this contention and returned
a verdict of “Not guilty by reason of insanity”.
This is a very significant and interesting decision, one that has not received
the attention it deserves. It is the first time in the knowledge of the reviewer
that a psychopath has successfully raised insanity as a defence. The authors
certainly deserve commendation for bringing this case to the -ftention of a
wider audience.
The next two cases are notable for the way hey illustrate how the psycho-
path, convicted of murder, is dealt with in the United States (Minnesota),
and the way a similar person, convicted of a similar offence, is handled in
Sweden. Redenbaugh, an American, is at the present time serving a literal
life-imprisonment. Despite the fact of a remarkable self-rehabilitation he is still
confined after forty-one years. The ,Swede, however, after nine years at a
special prison for psychopathic offenders, and at a semi-open prison for abnor-
mal criminals, has been allowed to retm to a normal and successful civilian
life.
The final two cases, those of Irma Grese and the Rosenbergs, achieved
international notoriety. Grese was a German SS concentration camp wardress
who was convicted and executed for crimes committed while a staff member
at Belsen concentration camp. The Rosenbergs came to public attention as the
result of being tried and executed for espionage activities in the United States
on behalf of the Soviet Union.
As presented in this book the last three cases are, in my opinion, of less
interest to lawyers than the first three, due no doubt to the fact that the first
three were written by Playfair who is a former English criminal lawyer. He
emphasizes the legal arguments and tactics used at the trials of Heath, Brettin-
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BOOK REVIEWS
ger and Redenbaugh. Sington, however, who is not a lawyer, tends to gloss
over the legal issues in his presentations.
In Part II, “The Summing-up”, the authors maintain: “1, That all punish-
ment by killing is wrong”, and “2. That to demand the abolition of the death
penalty for one crime while advocating its retention for another . . . is illo-
gical and self-defeating.” They bring out the interesting fact that only twelve
British members of Parliament are against capital punishment for all offences.
The overwhelming majority of M.P.s who would abolish capital punishment
as the sanction for murder, would still retain it for treason.
The authors urge “That abolition should not be fought for, as it mostly
has been, merely as an end in itself, but rather as the first essential step in a
program of penal reform.” They maintain that the best protection for society
is ultimately provided by a clinical or curative approach.
There are a number of criticisms that can be directed at this book. For
example the authors attack both the McNaghten rules and “the practice of
leaving the question of a criminal’s sanity to be decided in courts of law”:
This is inaccurate because courts in criminal matters do not decide insanity,
they only determine whether the accused is criminally responsible. Insanity
and criminal irresponsibility are not always equatable. Since they do not
believe the issue of responsibility is one that should be left to the courts they
can therefore avoid the difficult problem of suggesting a suitable alternative
to the McNaghten rules. The authors in their next paragraph reject the
notion that the question of responsibility should be left to a panel of medical
experts. They argue that “Medical experts are as fond of passing moral judge-
ments and as sensitive to public pressure as anyone else”. There is no attempt,
however, to offer alternative solutions.
Perhaps the above criticism illustrates the reviewer’s over-all impression
that the book was somewhat hastily composed. The authors, however, have
made a number of good points and reach, in my opinion, several sound con-
clusions. Increased attention to detail, better organization, and more deve-
loped argument, however, are needed to make their case really convincing.
RoNALD I. CimNrs*
*Assistant Professor of Law, McGill University.
McGILL LAW JOURNAL
[Vol. 5
ANATOMY OF A MURDER
Robert Traver.
THE MACMILLAN COMPANY OF CANADA LTD., 1958 –
437 PAGES. PRICE $4.50
Atomy of a Murder is one of the current best sellers. This novel, by a
former district attorney and later a defence attorney and now a Justice of the
Supreme Court of Michigan, has been described as a “suspense of the highest
and most delicious quality.” The plot is simple. It concerns the trial of a
soldier charged with murdering a man who had just raped his wife. But, it is
a skillful account of the technique and craftsmanship of a resourceful defence
attorney from the time he is retained to the verdict of the jury. In fact, the
revelation of the workings of the mind of the
lawyer in constructing his
“anatomy” of the murder with motives, state of mind, irresistable impulse and
insanity, is so astute and penetrating, that a lawyer reading this novel may feel
that now the layman has learned all the “secrets of the trade.”
Although the trial takes place in Michigan, the Canadian lawyer can benefit
from the comprehensive discussion of the medical and legal definitions of the
defence of insanity, the skillful introduction by the defence lawyer of the results
of a lie detector test (even though such evidence per se is inadmissi-‘c.), and the
strategy of the cross-examination. Despite the fact that this novel is to be filmed
in Hollywood, it is a vivid presentation of real courtroom scenes ‘with technical
legal procedure.
In brief, this worthwhile novel underlines the role of the lawyer and law in
society: “The law is society’s safety valve, its most painless way to achieve
social catharsis; any other way lies anarchy.” But most of all, this is a jury
trial, “a small daily miracle of democracy in action”. Rarely does a novel discuss
the proper use of a peremptory challenge and the challenge for cause, but even
rarer still is the study of a jury as made up of individuals and not just an
oracle to be heard at the end of the tria.
DAVID R. FRANKLIN*
*Of the Board of Editors, McGill Law Journal; third year law student.
